Theranos’ First Amendment Rights Violated

Touting the benefits of your blood testing methods; promoting the benefits of your wares for personal use; encouraging the use of particular forms of energy–these and other free speech rights have been attacked and curtailed by overzealous government regulation. The latest, from the liberal, anti-business Obama administration, is curbing the free speech rights of Theranos and its founder Elizabeth Holmes. Even as Arizona Governor Doug Ducey praises Theranos and their blood testing lab in Scottsdale while supporting legislation which “expands freedoms for people across the state to get the lab tests they need,” the Center for Medicare and Medicaid Services (CMS) is carrying out legal sanctions against the company. Further criminal probes are likely from the Department of Justice and the Securities and Exchange Commission. These probes are the result of the company and its founder speaking about their technology in ways which the government finds suspect.

Theranos has widely touted its revolutionary blood testing method which it has claimed can perform multiple tests with only a finger-prick amount of blood. It also runs blood testing laboratories which use its technology. The company and its founder have continued to promote the technology while investigations have shown that the laboratories are mostly testing using standard equipment from competitors, and that the company’s own technology has displayed shortcomings that pose jeopardy to those who depend on its results.

Effectively, Holmes and Theranos are being sanctioned for their continued defense of their company, its practices, and its technology, which have tried to enhance the effectiveness of its method while underplaying its weaknesses. In other words, they are subject to legal sanctions for exercising their first amendment rights of speech.

A similar series of events played out in the 1990’s when tobacco companies were similarly under attack for promoting their product and minimizing its shortcomings. Tobacco companies were subject to numerous lawsuits brought by individuals, and for decades succeeded in winning those lawsuits. While their own studies showed that smoking was addictive and had adverse health effects, the companies were able to enlist medical experts to give testimony that smoking was not implicated in various cancers and other deleterious health effects. When the states, and ultimately the federal government, got involved, the tobacco companies were punished, effectively for not saying about smoking what the government wanted them to say. The rights of free speech should mean the right to not be forced to say things that are not in your company’s interests. Acquiescing, the tobacco companies settled for billions of dollars.

As with Theranos and the tobacco companies, similar events are playing out in regards to Exxon Mobil and climate science. While its scientists’ research has recognized since at least the 1970’s that fossil fuel emissions could damage the environment and pose risks for society, it is under no obligation to promote these ideas and is free to continue its efforts to engage scientists and others at various institutions to raise doubts about climate science. Presciently, Exxon Mobil recognized the threat from public policymakers, essentially the government telling them what they could and could not say, as we have seen in the case of Theranos and the tobacco companies, and has modified its public position to assuage those threats.

Those questioning the claims of climate change advocates have come to Exxon Mobil’s defense (even as the company’s new official policy is that “the risks of climate change are real.”) As Rich Lowry writes, “Even if Exxon Mobil has deliberately tilted toward the side of the climate debate most convenient for it, that’s not a crime. If having a self-serving opinion were against the law, much of the political debate in this country would shut down.” Nick Stockton notes that Exxon maintains its right to deceptions as long as it doesn’t harm investors, referring to a quote in an internal Exxon memo, “That quote alone looks like pretty damning for Exxon. But to have a case, the state attorneys also have to prove that this deception harmed investors, or somehow altered investor behavior.” And C. Boyden Gray adds, “But unlike government scientists, ExxonMobil enjoys a First Amendment right to commercial speech and to withhold business information.”

Allegations of dishonesty against Theranos, the tobacco companies, and Exxon Mobil aside, corporations retain their rights of free speech.